Uncharted Territory
By MARTIN H. REDISH
AUG. 24, 2017
... Yes, on its face the Constitution’s pardon power would seem unlimited. And past presidents have used it with varying degrees of wisdom, at times in ways that would seem to clash with the courts’ ability to render justice. But the Arpaio case is different: The sheriff was convicted of violating constitutional rights, in defiance of a court order involving racial profiling ...
... If the pardon is challenged in court, we may discover that there are, in fact, limits to the president’s pardon power after all.
The only effective means courts have to prevent or stop governmental violations of constitutional rights is through injunctions. But injunctions have teeth only when they have the potential of a contempt conviction behind them ... Absent the “or else,” the injunction is all but meaningless ...
... as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation ...
... if the president can immunize his agents .. the courts .. effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is.. not the result contemplated by those who drafted and ratified the Fifth Amendment, and .. not the result dictated by precepts of constitutional democracy. All that would remain to the courts by way of enforcement would be the possibility of civil damage awards, hardly an effective means of .. deterring invasions of the right to liberty ...
https://www.nytimes.com/2017/08/24/opinion/trump-arpaio-pardon-arizona-sheriff.html?smid=pl-share
